You are on page 1of 5

SILLIMAN UNIVERSITY

College of the Law


Midterm Examination
February 7, 2013

SUPERIOR COURT OF THE STATE OF COLUMBIA


FOR THE COUNTY OF ANGELES
____________________________
Case No. 88888
DALIA FLORES, Plaintiff,

OPPOSITION TO DEMURRER TO COMPLAINT

vs.
MEMORANDUM OF POINTS
AND AUTHORITIES IN
GARY A. FALK, Defendant

SUPPORT OF OPPOSITION

Statement of Facts:
Herein plaintiff is the daughter of Maria Flores, deceased while defendant Gary A. Falk is
and was an attorney licensed to practice law in Columbia and was practicing law in Angeles
County, Columbia. On October 2007, defendant was engaged by Maria Flores to prepare and
record a deed granting to plaintiff present joint title to certain real property then owned by Maria
Flores located in Angeles County. Defendant undertook the engagement and represented that he
possesses and would exercise that standard of skill, prudence, and diligence that members of the
legal profession commonly possess and exercise. Defendant owed a duty to plaintiff to exercise
said standard of skill, prudence, and diligence by reason of the fact that plaintiff was the intended
beneficiary of the undertaking defendant agreed to carry out for Maria Flores. Defendant

breached said duty to plaintiff by failing to timely record and deliver said deed as instructed by
Maria Flores.

Maria Flores died on July 2008 but defendant had not carried out the instructions of
Maria to record and deliver said deed to plaintiff. Defendant failed to record the grant deed until
one month after Maria's death and almost eleven months after the deed was executed and
delivered to him. Because of defendant's negligence and breaches, Plaintiffs brother Charles
Flores was able to challenge plaintiff's title to the real property and house in a probate
proceeding; and plaintiff was forced to litigate the rights to the ownership of Marias property
and house, litigation that would have been avoided but for defendants negligence in carrying out
the instructions given to him. The estate of Maria Flores was probated under the rules of intestate
succession, and during the probate proceedings the probate court issued a tentative decision
stating that the court intended to rule that Maria Flores did not have the present intent to deliver
title to plaintiff when she delivered the deed to defendant.
As a result of said tentative decision, plaintiff was forced to enter into a settlement of her
rights in the estate which settlement resulted in the loss of the full value of the real property and
residence, which plaintiff would have received. As a consequence of said breach of duty by
defendant, plaintiff was deprived of the benefit of the real property and residence that Maria
Flores intended should be conveyed to her during Marias lifetime. Said negligence and breach
of duty of defendant was the actual and proximate cause of plaintiffs loss which prompted the
plaintiff to file a complaint for professional malpractice against the defendant. Defendant filed a
demurrer stating that the complaint fails to state a cause of action because plaintiff was not his
client and thus he owed her no duty.
WHEREFORE, plaintiff now files this opposition to the demurrer based on the following
arguments.

Arguments

I.

When an attorney undertakes to fulfill the testamentary instructions of his


client, he realistically and in fact assumes a relationship not only with the client
but also with the clients intended beneficiaries.

In the case of OSORNIO v WEINGARTEN (2004) the court held that the attorney's actions
and omissions will affect the success of the client's scheme; and thus the possibility of thwarting
the testator's wishes immediately becomes foreseeable. Equally foreseeable is the possibility of
injury to an intended beneficiary. In some ways, the beneficiary's interests loom greater than
those of the client. After the latter's death, a failure in his testamentary scheme works no practical
effect except to deprive his intended beneficiaries of the intended bequests. Only the
beneficiaries suffer the real loss. Unless the beneficiary could recover against the attorney in
such a case, no one could do so and the social policy of preventing future harm would be
frustrated.
The Court held that an attorney's liability to a third person not in privity in a particular case
is a matter of policy and involves the balancing of various factors, among which are (1) the
extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm
to him, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the
connection between the defendant's conduct and the injury suffered, (5) the policy of preventing
future harm, (6) whether the recognition of liability would impose an undue burden on the
profession, and (7) the likelihood that imposition of liability might interfere with the attorney's
ethical duties to the client.
In this case we tackle on these factors and it clearly shows that said defendant clearly has a
duty and accountability towards our client. It is clear that he was negligent in his duty as counsel
when he did not register the said deed as instructed by decedent Maria Flores. His reasoning was
out of place when he said that he wanted to protect the interest of Maria who was elderly and
confined to the hospital that her intent might change because of her being sick and people who
are confined tend to change their minds of the decisions they made after they get out of said
condition. He stated that he intended to call her upon her release from the hospital just to make

sure that those were still her wishes. But defendant never called her. He had to wait for Maria to
call him and instruct him again that she wanted to make a deed for her daughter. He was not
diligent in his duty when he did not follow up the request of the client when clearly Maria
thought that he had already started working on the deed and registering the same. He had to wait
for eleven months before the deed was to be recorded. It is evident when it was even when Dalia
called him early in June 2008 that Mr. Falk first started thinking of recording said deed when he
was instructed nine months earlier. Defendant couldnt even follow up on a phone call for a
period of nine months if that was his real intent. How could he not foresee that the client would
probably be out of the hospital by that time? He claimed that he was diligent in seeing to it that
the property was transferred appropriately. But he was not. He had to wait after the client pass
away before he registered said deed nullifying her original intent of conveying said real property
to her daughter Dalia when the court declared the sharing of the intestate proceeding of the estate
of decedent Maria Flores.
Defendant claimed in his demurrer that although in limited circumstances a lawyer retained
to provide legal services to a grantor may also have a duty to act with due care for the interests of
intended third-party beneficiaries, the lawyer's primary duty is to serve and carry out the client's
intentions. But he failed in his duty to his client when it was clear what his clients intention was
and that was to transfer said property to her daughter after she passed away. This did not happen
because of his lack of care. His failure to follow up on his clients request when the client was
already thinking that her instruction was apparent pointed a clear negligence on his part which he
should be held accountable.
II.

A demurrer to a negligence claim will properly lie only where the allegations of
the complaint fail to disclose the existence of any legal duty owed by the
defendant to the plaintiff.

A demurrer tests the sufficiency of the complaint as a matter of law; as such, it raises only a
question of law. In the same came case the court ruled that in order to defeat a demurrer the court
looks for facts which, if later proved, would establish a cause of action. It is clear from the case
of OSORNIO v WEINGARTEN that the defendant here has a legal duty towards the plaintiff

which is a beneficiary of the deceased client. A legal malpractice action is composed of the same
elements as any other negligence claim: duty, breach of duty, proximate cause and damage. In
Columbia an attorney's liability for professional negligence does not ordinarily extend beyond
the client except in limited circumstances. Indeed, until 1961, Columbia followed the traditional
view that an attorney owes a duty of care, and is thus answerable in malpractice, only to the
client with whom the attorney stands in privity of contract. In the case of Lucas v Hamm (1961)
the Supreme Court disapproved of the strict privity requirements.
We have to balance the factors that must be considered in evaluating the question of an
attorneys potential liability to third parties. As in the case of Osornio, as a matter of public
policy, defendant here must owe a duty of towards plaintiff under the facts alleged in the
complaint.
Lastly as in the case of Radovich v Locke (2005) the court ruled that the strongest argument
for plaintiff is the position that if the duty of care owed by defendant is not extended to plaintiff,
in the circumstances of record, defendant will be liable to no one and an opportunity to deter
such conduct in the future will be lost.
Under these circumstances, defendant Falks demurrer should be struck down and a judgment
against him should be rendered by this honorable court.

JOSE SANDINO B. ABIERA


Counsel for the Plaintiff